Citation Nr: 1455153
Decision Date: 12/15/14 Archive Date: 12/24/14
DOCKET NO. 13-08 373 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUE
1. Entitlement to service connection for a left hip replacement, to include as secondary to the residuals of frostbite of the feet.
2. Entitlement to service connection for a right knee replacement, to include as secondary to the residuals of frostbite of the feet.
3. Entitlement to service connection for a right leg condition claimed as poor circulation, to include as secondary to the residuals of frostbite of the feet.
4. Entitlement to service connection for bilateral gout of the feet, to include as secondary to the residuals of frostbite of the feet.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
J. L. Prichard, Counsel
INTRODUCTION
The Veteran had active service from November 1955 to December 1957.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision of the Winston-Salem, North Carolina, regional office (RO) of the Department of Veterans Affairs (VA).
The Veteran's appeals were among those previously before the Board in January 2014. The Board reopened the Veteran's previously denied claim for service connection for the residuals of frostbite of his feet, and remanded all issues for additional development and consideration.
Subsequently, entitlement to service connection for the residuals of frostbite of the right foot and the residuals of frostbite of the left foot was granted in a September 2014 rating decision. The remaining issues have been returned to the Board for further consideration.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
In accordance with the Board's remand instructions, the Veteran was afforded a VA examination in June 2014. The examiner opined that there was no evidence to relate the Veteran's frostbite of the feet as the causative etiology of the degenerative joint disease of the left hip or right knee, or his gout or claimed circulatory insufficiency of his right lower extremity. The requested opinions regarding aggravation were not provided.
The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998).
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Schedule the Veteran for a VA examination to determine the relationship of the claimed disabilities to service or service connected disabilities. The examiner should review the electronic records (VBMS and Virtual VA) and should state that the records were reviewed. The examiner should provide opinions with regard to the following:
a) Is it as likely as not that gout, disability of the left hip, disability of the right knee, or circulatory disturbance are the proximate result of his service connected residuals of frostbite injury to the feet?
b) If not proximately caused by a frostbite injury of the feet, was any current gout, disability of the left hip, disability of the right knee, or claimed impaired circulation of the right leg aggravated by a frostbite injury to the feet?
c) If aggravated, is there medical evidence created prior to the aggravation or prior to the current level of disability that shows a baseline of the disability prior to aggravation by a frostbite injury of the feet? If so, describe the baseline.
The examiner should provide reasons for these opinions that take into account the Veteran's reports. If the examiner is unable to express any portion of the requested opinion without resort to speculation, the reasons and bases for that opinion should be provided, and any outstanding evidence that might enable the requested opinion to be provided should be identified.
2. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, issue a supplemental statement of the case; then return the case to the Board, if in order.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).